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Kurt Lash, constitutional law expert

7/2/2012 8:00 am

Kurt T. Lash, the Alumni Distinguished Professor of Law at Illinois, is one of the nation’s leading scholars on constitutional law. He spoke with News Bureau business and law editor Phil Ciciora about the surprise ruling in one of the most publicized (and polarizing) U.S. Supreme Court cases of recent years.

In siding with the left wing of the court, do you think Chief Justice John Roberts became worried that his court would be viewed as too political? Is he embracing the “umpire” role he talked about during his confirmation hearings, or is it more a matter of the Constitution being clear on the power of Congress as a taxing authority?

I think we have to assume that Chief Justice Roberts believed what he wrote represented the proper interpretation of the law. It would not be the first time that the chief justice has embraced a broader interpretation of federal power than Associate Justice (Anthony) Kennedy. What makes the case surprising was the chief justice’s reliance on the tax power to uphold the mandate, an argument that had been rejected by every lower court. The weaker the argument, of course, the more people will conclude Roberts’ opinion represents more an act of institutional politics and less a good faith interpretation of the law.

In fact, his argument that the law is not a tax for the purposes of the Anti-Injunction Act but is a tax for the purposes of the constitutional power analysis, as well as his conclusion that the mandate is not really a mandate and the penalty is not really a penalty, will be debated for years. However, whether the argument is persuasive, I nevertheless presume it represents what the chief justice truly believes.

Does the court’s rejection of the Commerce Clause and the Necessary and Proper Clause signal a major blow to the authority of Congress to pass social welfare laws or otherwise intervene in national affairs?

Chief Justice Roberts agreed with the four dissenting justices that the insurance mandate would be an unconstitutional exercise of the Commerce Power. The Article I, Section 8 power to regulate interstate commerce does not include the power to force people to engage in commerce. Even if one considers it dicta (a point of law unnecessary to the actual judgment), this seems to represent the reading of the Commerce Power by a majority of the Supreme Court. This is a significant development. In the past, many legal commentators argued that this was a frivolous theory of the Commerce Clause. No longer.

But this new reality does not threaten any current federal program since Congress has never before tried to force people to enter into private commercial contracts. The real impact would have been if the court had accepted the argument that the Commerce Power allows Congress to compel people to purchase products. This would have opened the door to a very attractive regulatory option in times of economic stress. Of course, the court has now opened the door for Congress to do the same thing under the taxing power. It remains to be seen whether Congress will find exercising the taxing power is as attractive as exercising the power to regulate commerce.

In interpreting the individual mandate as a tax, do you foresee the tax code now being used more extensively to pass other laws pertaining to big issues of national importance?

There is a reason why Congress declined to call the mandate a “tax.” One presumes it is the same reason that President Obama insisted on national television that this was not a “tax.” People generally oppose higher taxes and they often punish politicians at the polls who increase taxes for reasons that are not broadly persuasive. Chief Justice Roberts saved the mandate by calling it a “tax.” This allowed Congress to pass a law that escaped the criticism that would have occurred had the public known that Congress was passing an enormous tax increase. However, the public is now on notice that any similar “penalties” proposed in the future are actually proposed “taxes.” That fact alone may deter Congress from walking through the door just opened by the chief justice.

Chief Justice Roberts is just 57 years old, and will probably lead the court for at least another 20 years. What kind of insight into the philosophy of the Roberts court can we glean from this ruling and the other major rulings of the last week of this term?

To date, Chief Justice Roberts has been far bolder in leading the court toward his vision of due process, equal protection and individual rights than he has been in crafting a jurisprudence of federalism and limiting the general scope of federal power. Compare his forceful opinions in the Citizens United and Parents Involved cases with his quiet joining of Associate Justice (Stephen) Breyer’s opinion in United States v. Comstock (upholding federal power to extend incarceration for federal prisoners beyond their served sentence) and his almost apologetic embrace of Associate Justice Breyer’s theory of the taxing power in NFIB v. Sebelius (the new name for the health care cases).

On the other hand, I think it would be unwise to ignore those aspects of Chief Justice Roberts’ opinion that insist on maintaining a federal government of limited enumerated powers. A majority of the court not only announced significant limits to the Commerce Power, they also limited the scope of the Spending Power. Don’t forget, in the second half of his opinion, Roberts joined four other votes in striking down the attempt by Congress to condition all federal Medicaid funding on the states’ willingness to expand their current Medicaid benefits. This is the first time since the New Deal that the Supreme Court has actually enforced limits on the national power to “tax and spend.” This shows that the chief justice is not afraid to apply principles of federalism even where they have real bite.

In the end, the chief justice may have planted seeds in NFIB v. Sebelius that will grow in later cases.

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